Porter v. Board of Trustees of North Carolina State University

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:21-CV-365-BO

STEPHEN R. PORTER, PH.D., )

)

Plaintiff, )

)

v. ) ORDER

)

BOARD OF TRUSTEES OF NORTH )

CAROLINA STATE UNIVERSITY, W. _)

RANDOLPH WOODSON, MARY ANN _ )

DANOWITZ, JOY GASTON GAYLES, _ )

JOHN K. LEE, and PENNY A. PASQUE, |)

individually and in their official capacities, )

)

Defendants. )

This cause comes before the Court on defendants’ motion to dismiss. Plaintiff has

responded, defendants have replied, and in this posture the matter is ripe for ruling. Plaintiff has

also sought leave to file a sur-reply in opposition to the motion to dismiss, which defendants

oppose. For the reasons that follow, defendants’ motion to dismiss is granted and this action is

dismissed.

BACKGROUND

Plaintiff initiated this action by filing a complaint on September 14, 2021. Plaintiff alleges

claims against the Board of Trustees of North Carolina State University, the Chancellor of North

Carolina State University (NCSU), the Dean of NCSU’s College of Education, a professor and

program coordinator in the Department of Educational Leadership, Policy, and Human

Development (Dept. of Educational Leadership) at NCSU, and the current and prior heads of the

Dept. of Educational Leadership. Plaintiff alleges that defendants violated plaintiff's right to free

speech under the First and Fourteenth Amendments and seeks damages, a declaratory judgrnent,

and a permanent injunction. See 42 U.S.C. § 1983; 22 U.S.C. § 2201.

Plaintiff alleges as follows in his complaint. [DE 1]. Plaintiff was hired by NCSU in 2011

as a tenured professor in the Dept. of Educational Leadership. Jd. § 13. Plaintiff was hired to teach

courses in graduate-level statistics and research methods in the College of Education, of which the

Dept. of Educational Leadership is a part. Jd. When plaintiff was hired he joined the Higher

Education Program Area within the Dept. of Educational leadership. Jd. The Dept. of Educational

Leadership offers both a master’s degree and a Ph.D. and does not offer degrees to undergraduate

students. Id. § 14. While at NCSU plaintiff has had “limited involvement” with the master’s degree

program, has no master’s degree advisees, and does not attend events which are related only to the

master’s degree. Jd. 4 15.

In 2015, the College of Education faculty voted to create the Scholar Leader Ph.D.

program. /d. § 16. As a part of this change, each Ph.D. program within the College of Education

continues to have its own program-specific courses, but all College of Education Ph.D. students

take common research methods and Scholar Leader courses. Jd. All Ph.D. programs are located

within a Program Area of Study, which is distinct from a Program Area. Jd. § 17. In essence,

separate tracks were created for master’s degree and Ph.D. students, but plaintiff alleges that the

Dept. of Educational Leadership ignored these distinctions and continued to address both master’s

and Ph.D. matters within the original Program Areas. /d.

Plaintif? alleges: that, prior to suffering adverse: employmerit action, he spent “considerable

time” on Higher Education Ph.D. activities, including advising Higher Education Ph.D. students,

serving on Higher Education Ph.D. committees, and actively recruiting prospective Ph.D. students.

Id. § 18. Plaintiff further alleges that he has been outspoken in recent years about his concern

regarding the focus on “so-called ‘social-justice’ affecting academia in general” and “his concern

that the field of higher education study is abandoning rigorous methodological analysis in favor of

results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and

‘inclusion.’” Jd. { 19.

Plaintiff alleges that defendants retaliated against him for exercising his right to free

speech, specifically identifying three statements or communications that he made in 2016-2018.

In the spring of 2016, plaintiff alleges that he expressed concerns at a department meeting

about a proposal to add a question about diversity on student course evaluations. /d. J 20. Plaintiff

describes the discussion as amicable but notes that the incident was later referenced in a May 2017

departmental report by NCSU’s Office of Institutional Equity and Diversity wherein plaintiff was

labeled as a “bully.” Jd. §§ 23-24. Defendant Pasque became head of the Dept. of Educational

Leadership at the beginning of academic year 2017-18 and discussed the report with plaintiff

during a meeting in November 2017. Jd. 25-26. In January 2018, defendant Pasque emailed

plaintiff restating the concern regarding “bullying” and invited plaintiff to respond. Jd. 4 29.

Pasque’s email was later included in plaintiffs personnel file without his knowledge. { 32.

In April 2018, the journal /nside Higher Ed published an article about a faculty search

committee at NCSU, which was chaired by one of plaintiff's colleagues, Alyssa Rockenbach. The

search committee had included as a finalist for a faculty position a professor from another

university who had been terminated by that university after the professor allegedly ran a side

business which he staffed with university staff members, neglected his professorial duties, and had

an inappropriate relationship with a student. Jd. §§ 33-34. Plaintiff was concerned that his NCSU

colleague had “cut corners” in vetting the candidate “out of a desire to hire a Black scholar whose

work focused on racial issues”. /d. § 36. After the article was published plaintiff sent an email to

the Higher Education faculty linking to the article and stating: “Did you all see this? .. . This kind

of publicity will make sure we rocket to number 1 in the rankings. Keep up the good work, Alyssa!”

Id. § 37.

Defendant Pasque met with plaintiff about the email a week later, asking plaintiff about his

intent in sending the email. Jd. § 38. Plaintiff later learned that defendant Gayles had forwarded

plaintiff's email to Pasque with a message “NOT COOL!!! I am so mad about all of this I could

scream!! I can’t stay silent about this. It’s maddening!” Jd. ¥ 40. Plaintiff also learned that

Rockenbach had forwarded plaintiff's email to defendants Pasque and Danowitz as well as the

Associate Vice Provost for Equal Opportunity and Equity. /d. During a follow up meeting with

defendant Pasque on April 24, 2018, plaintiff alleges that Pasque inquired as to whether plaintiff

had to remain a member of the Higher Education Program Area or whether he could be a member

of the department without a program area. /d. J 41. Plaintiff received a good annual evaluation that

year, with a notation that plaintiff, and all faculty, were expected to be collegial. /d. § 46.

Plaintiff alleges that on September 3, 2018, he once again exercised his right to free speech

when he published a post on his personal blog entitled “ASHE Has Become a Woke Joke.” Jd. §

47. Plaintiff's post commented on research a colleague of his had gathered about topics for

discussion at the upcoming ASHE (Association for the Study of Higher Education) conference;

this research demonstrated that the focus of the conference had shifted from general, post-

secondary research to social justice. /d. Plaintiffs blog post generated controversy on social media.

Id. § 48-52.

At the start of the 2018-2019 academic year, defendant Dariowitz met with Higher

Education Program Area faculty, including plaintiff, alerting them to the possibility of a spousal

hire.! Jd. { 53. The spousal candidate was a well-known post-secondary researcher interested in an

NCSU position. /d. Instead of discussing the candidate as planned at a Higher Education Program

Area faculty meeting, defendant Pasque invited plaintiff to a Google Hangout meeting on October

15, 2018, to which defendant Gayles and two other people were also invited. Id. § 55. Pasque

proposed that plaintiff leave the Higher Education Program Area and join a new Higher Education

Policy Program Area with plaintiff, the potential spousal hire, and Pasque as the members. /d.{ 56.

Plaintiff alleges that this was the second time in six months that Pasque had suggested plaintiff

leave the Higher Education Program Area and that it was in retaliation for plaintiff's unpopular

speech. Id. J§ 56-57. Plaintiff alleges that the Google meeting focused on plaintiffs refusal to

leave the Higher Education Program Area and the impact on the ability to bring in the spousal hire.

Id. § 58. Plaintiff stated “Give me a f****** break, folks. I was the one who said [the potential

spousal hire] should come. And now I’m the bad guy because I don’t want to leave Higher Ed for

a non-existent program area.” /d.{ 60. Plaintiff received a letter from Pasque on October 18, 2018,

chastising him for his use of profanity and expression of frustration at the meeting. Jd. § 62.

Plaintiff received another letter from Pasque on November 7, 2018, expressing concern

about plaintiff's collegiality. Jd.§ 63. The letter highlighted the 2017 climate study which labeled

plaintiff as a bully, plaintiff's circulation of the Jnside Higher Ed article, and plaintiffs use of

profanity during the October 2018 meeting. /d. §§ 63. Pasque’s letter indicated that if plaintiff did

not repair the relationship among Higher Education Program Area faculty or continued to display

a lack collegiality he would be removed from the Higher Education Program Area. Id. { 64.

| A spousal hire is described by plaintiff as an informal agreement among universities in the area

to help place one member of an academic couple when there is an interest in hiring the cther

member. /d. ¥ 53.

On November 19, 2018, plaintiff received an email from Pasque about student reactions to

the ASHE conference keynote address, which addressed plaintiff's “woke joke” blog post. Id. §

66-67. Pasque proposed a community conversation during which plaintiff would be expected to

address graduate students’ concerns to help students reconcile the “great teacher” they knew with

what they had heard about plaintiff from the ASHE address. 67-69. Plaintiff later discovered

that only two of approximately sixty students had spoken with Pasque about the ASHE matter and

that an informal discussion regarding the matter had taken place with Dept. of Educational

Leadership faculty after an evening social with students. Jd. § 71. Plaintiff sought to have the issue

added to a January 2019 Higher Education Program Area meeting but it was not. /d. § 72. However,

in February 2019, plaintiff and Pasque again met and Pasque repeatedly expressed her frustration

that plaintiff had not addressed the ASHE matter. Jd. § 73-74.

On July 5, 2019, plaintiff received his annual evaluation letter and was informed that he

had been removed from the Higher Education Program Area because Higher Education faculty

had not been able to make “concerted progress” on resolving issues within the Program Area. Id.

4 78. Plaintiff would also be expected to teach an extra, fifth course. In July 2019, Pasque left

NCSU and was replaced by Defendant Lee. Id. § 81. Lee informed plaintiff he would not be

required to teach an extra course following plaintiff's filing of an internal grievance on August 28,

2019, contesting his removal from the Higher Education Program Area and the addition of an extra

course to his workload. Jd. § 82-83. The requirement that plaintiff teach a fifth course was not,

however, removed from plaintiff's personnel file. Jd. § 83.

Plaintiff alleges that as a consequence of being rernoved from tie Hligher Education

Program Area, he was barred from attending the Higher Education Orientation for new PhD.

students, the Higher Education welcome cookout, and the Higher Education retreat; plaintiff also

alleges that he was excluded from the Diagnostic Advisement Procedure process for second-year

Ph.D. students, including for his own advisees. /d. §] 85-92.

Plaintiff later expressed concern to defendant Lee that he was being set up so that when he

was up for post-tenure review in a few years, he would not have any advisees and could be stripped

of tenure and fired for not fulfilling his job duties. Jd § 101. Plaintiff alleges that in December

2019 he was prohibited from attending a Ph.D. admissions meeting, which is when advisees are

assigned, and was further barred from attending a Spring 2020 Ph.D. recruitment weekend. Jd. □

104. Plaintiffs internal grievance was denied in June 2020. Jd. J 105.

Finally, in October 2020, some Dept. of Educational Leadership faculty proposed a new

Ph.D. Program Area of Study in Higher Education Access, Equity, and Justice. Jd. § 107. Plaintiff

was not asked whether he would be interested in participating in this new Program Area of Study

and all faculty members with the exception of plaintiff were invited to join. /d. JJ 108-110. Plaintiff

and one other faculty member did not join the new Program Area and remained in the Higher

Education Program Area of Study. /d. § 110. They were informed in March 2021 that they could

make offers of admission to doctoral candidates but that those candidates would be encouraged to

switch to the new Program Area of Study once they arrived. Jd. § 114.

DISCUSSION

Defendants have moved to dismiss plaintiff's complaint in its entirety for lack of subject

matter jurisdiction and for failure to state a claim upon which relief can be granted pursuant to

Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.”

Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a claim for lack of subject

matter jurisdiction. “Subject-matter jurisdiction cannot be forfeited or waived and should be

2 The Court, in its discretion, allows plaintiffs motion for leave to file a sur-reply [JDE 24]. The

proposed sur-reply filed at [DE 24-1] is deemed filed.

considered when fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009) (citation omitted).

When subject-matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction

to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th Cir. 1999). When a

facial challenge to subject-matter jurisdiction is raised, the facts alleged by the plaintiff in the

complaint are taken as true, “and the motion must be denied if the complaint alleges sufficient

facts to invoke subject-matter jurisdiction.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir.

2009). The Court can consider evidence outside the pleadings without converting the motion into

one for summary judgment. See, e.g., Evans, 166 F.3d at 647.

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan vy. Allain, 478

U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), “the court should

accept as true all well-pleaded allegations and should view the complaint in a light most favorable

to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir,1993). A complaint must

allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts pled “allow[] the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and mere

recitals of the elements of a cause of action supported by conclusory statements do not suffice.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must be dismissed if the factual

allegations do not nudge the plaintiffs claims “across the line from conceivable to plausible.”

Twombly, 550 U.S. at 570.

A. Board of Trustees and official capacity claims

Plaintiff does not appear to dispute that his claims for damages. against the Board of

Trustees and the individual defendants in their official capacities are barred by sovereign and

Eleventh Amendment immunity. See Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356,

363 (2001); Huang v. Bd. of Governors of Univ. of N. Carolina, 902 F.2d 1134, 1138 (4th Cir.

1990); see also Ballenger v. Owens, 352 F.3d 842, 845 (4th Cir. 2003). In his response to the

motion to dismiss, however, plaintiff argues that he may nonetheless obtain prospective relief

against the defendants under Ex Parte Young, 209 U.S. 123 (1908). Under Ex Parte Young,

“federal courts may exercise jurisdiction over claims against state officials by persons at risk of or

suffering from violations by those officials of federally protected rights, if (1) the violation for

which relief is sought is an ongoing one, and (2) the relief sought is only prospective.” Republic

of Paraguay v. Allen, 134 F.3d 622, 627 (4th Cir. 1998).

With one exception, the relief plaintiff seeks is not prospective. In his complaint, plaintiff

seeks, in addition to damages and attorney fees, (1) a declaration that defendants’ actions violated

his First Amendment right to speak on matters of public concern and (2) a permanent injunction

requiring defendants to reinstate plaintiff to the Higher Education Program Area; allow him to join

the Higher Education Opportunity, Equity, and Justice Program Area of Study; and remove the

requirement that he teach a fifth course from his personnel file. [DE 1].

Where the effect of a declaratory judgment and injunction would be to “undo accomplished

state action[,]” the Ex Parte Young exception does not apply. Paraguay, 134 F.3d at 628. In his

sur-reply, plaintiff clarifies that he seeks “prospective relief against the continuation of the past

violation.” [DE 24-1]. However, “even though the consequences of any past violation may persist,

invoking those effects does not transform past state action into an ongoing violation.” Jemsek v.

Rhyne, 662 F. App’x 206, 211 (4th Cir. 2016). Accordingly, plaintiffs requests for injunctive relief

regarding his permission to join the new Higher Education Opportunity, Equity, and Justice

Program Area of Study and the removal of the requirement that he teach a fifth course are not

prospective, and Ex Parte Young does not provide an exception to Eleverth. Amendment immunity.

Plaintiff's request for ‘reinstatement’, however, to the Higher Education Program Area

may well state a claim for prospective injunctive relief. “[R]einstatement is a form of prospective

relief, [and] the refusal to provide that relief when it is requested can constitute an ongoing

violation of federal law such that the Ex parte Young exception applies.” Bland v. Roberts, 730

F.3d 368, 390 (4th Cir. 2013); see also Biggs v. N. Carolina Dep’t of Pub. Safety, 953 F.3d 236,

243 (4th Cir. 2020) (whether in the context of termination or demotion “claims for reinstatement

to previous employment meet the Ex Parte Young exception.”). However, as discussed below,

plaintiff has failed to state a First Amendment retaliation claim.

B. First Amendment retaliation

“The First Amendment protects not only the affirmative right to speak, but also the ‘right

to be free from retaliation by a public official for the exercise of that right.’” Adams v. Trustees of

the Univ. of N.C.-Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) (citation omitted). Retaliation in

violation of the First Amendment is actionable because it tends to chill the exercise of

constitutional rights. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500

(4th Cir. 2005). However, “[w]here there is no impairment of the plaintiffs rights, there is no need

for the protection provided by a cause of action for retaliation. Thus, a showing of adversity is

essential to any retaliation claim.” Am. C.L. Union of Maryland, Inc. v. Wicomico Cnty., Md., 999

F.2d 780, 785 (4th Cir. 1993). Ifa plaintiff has alleged adverse employment action, the following

must be determined in order for a public employee to prove a claim for First Amendment

retaliation:

(1) whether the public employee was speaking as a citizen upon a matter of public

concern or as an employee about a matter of personal interest; (2) whether the

employee’s interest in speaking upon the matter of public concern outweighed the

government’s interest in providing effective and efficient services to the public; and

(3) whether the employee’s speech was a substantial factor in the employee’s

[adverse employment action].

10

McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998); see also Penley v. McDowell Cnty. Bd. of

Educ., 876 F.3d 646, 654 (4th Cir. 2017). “The causation requirement is ‘rigorous’ in that the

protected expression must have been the ‘but for’ cause of the adverse employment action

alleged.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 318 (4th Cir. 2006)

What constitutes a materially adverse action for a Title VII retaliation claim is “similar to

the standard for demonstrating an adverse action in the First Amendment retaliation context.”

Feminist Majority Found. v. Hurley, 911 F.3d 674, 697 n.12 (4th Cir. 2018). Whether an action is

adverse is an objective standard, which will be satisfied if the retaliatory conduct would “deter a

person of ordinary firmness from the exercise of First Amendment rights.” Constantine, 411 F.3d

at 500.

Termination, demotion, loss of compensation, and loss of opportunity for promotion are

well-settled materially adverse employment actions. See Ridpath, 447 F.3d at 316; Boone v.

Goldwin, 178 F.3d 253, 256-57 (4th Cir. 1999). The denial of opportunity for professional

advancement may also constitute materially adverse action. Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 69 (2006). The adverse actions about which plaintiff complains are his removal

from the Higher Education Program Area, being told he would have to teach a fifth course (without

actually being required to teach a fifth course), and not being invited to join a recently formed

Ph.D. Program Area of Study.

Plaintiff remains a tenured professor in the NCSU College of Education and a member of

the Pigher Education Ph.D. Program Area of Study. He has not allege:d he has suffered any

diminution in pay or responsibility or that he has lost the opportunity for promotion. At bottom,

plaintiff alleges that the decision to remove him from the Higher Education Program Area will, in

the future, result in his being unable to obtain advisees which will leave his future at NCSU in

11

doubt. Such adverse consequence, however, is speculative. Plaintiff has not alleged that he does

not currently have any advisees or that his tenure status is now at risk. Accordingly, he has failed

to plausibly allege that any defendant took materially adverse action against him in retaliation for

any protected speech.

Moreover, plaintiff has failed to plausibly allege that retaliation for engaging in protected

speech was the proximate cause of any allegedly adverse action by defendants. Plaintiff identifies

three instances of speech for which he was allegedly retaliated against. The last instance took place

eleven months prior to his removal from the Higher Education Program Area in July 2019, which

is too long to demonstrate that temporal proximity would tend to show that the protected activity

was “the substantial motivating factor in the adverse action.” Penley, 876 F.3d at 657 (eight to nine

months between speech and adverse action is insufficient to demonstrate causation based on

temporal proximity).

The complaint further fails to otherwise show a causal connection between the allegedly

protected speech and any adverse action. As argued by defendants, the complaint reveals that

plaintiff had been described as a bully in a department Climate Study completed in 2017 and that

plaintiff made comments about and to other faculty members which could be perceived as

unprofessional or disrespectful. See [DE 1 24, 37, 60]. Finally, plaintiff's complaint alleges that

defendant Pasque had repeatedly expressed concern regarding plaintiff's collegiality and his

failure to repair relationships among faculty. Jd. J] 46, 61, 62, 75. Even construing the facts and

inferences in the light most favorable to plaintiff, the complaint fails to plausibly allege that any

protected speech identified by plaintiff was the substantial motivating factor in the decision to

remove him from the Higher Education Program Area or any other allegedly adverse action.

12

Because plaintiff has failed to plausibly allege that he has suffered adverse action or that

any allegedly protected speech was the ‘but for’ cause of any alleged adverse employment action,

he cannot state a claim for retaliation in violation of the First Amendment.?

The defendants named in their individual capacity further contend they are entitled to

qualified immunity. Qualified immunity shields government officials from liability for statutory

or constitutional violations so long as they can reasonably believe that their conduct does not

violate clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Henry v.

Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). A court employs a two-step procedure for

determining whether qualified immunity applies that “asks first whether a constitutional violation

occurred and second whether the right violated was clearly established.” Melgar v. Greene, 593

F.3d 348, 353 (4th Cir. 2010). A court may exercise its discretion to decide which step of the

analysis to decide first based on the circumstances presented. Pearson v. Callahan, 555 U.S. 223,

236 (2009).

As discussed above, the Court first holds that plaintiff has failed to plausibly allege a First

Amendment retaliation claim, and thus has failed to allege that a constitutional violation occurred.

However, even assuming, without deciding, that plaintiff has sufficiently alleged such a claim, the

individual defendants would be entitled to qualified immunity.

A clearly established right requires existing precedent which places “the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (noting a

case on point is not required). Moreover, the right must not be defined! a! a high level of generality

and must instead focus on the particular conduct at issue. Muilenix wv. Luna, 577 U.S. 7, 12 (2015)

(citing al-Kidd, 563 U.S. at 742).

3 The Court thus declines to address whether plaintiff was speaking as a citizen upon a matter of

public concern and whether plaintiff’s interest in speaking outweighed the: NCSU’s interest.

13

Although “the right to of a public employee to speak as a citizen on matters of public

concern—is clearly established and something a reasonable person in the Defendants’ position

should have known was protected[,]” Adams, 640 F.3d at 566, “only infrequently will it be ‘clearly

established’ that a public employee’s speech on a matter of public concern is constitutionally

protected, because the relevant inquiry requires a ‘particularized balancing’ that is subtle, yet

difficult to apply, and not yet well defined.” Pike v. Osborne, 301 F.3d 182, 185 (4th Cir. 2002)

(citing DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir.1995); and McVey, 157 F.3d at 277).

Adams, the sole case on which plaintiff relies to oppose qualified immunity, involved an

assistant professor’s denial of promotion to full professor because of his views which were

published in books and stated on television and radio programs. Here, plaintiff's speech for which

he alleges he was retaliated against included his expression of concern about the inclusion of a

diversity question on student course evaluations during a faculty meeting, his email to faculty

regarding the school’s rankings, and a personal blog post titled “ASHE Has Become a Woke Joke”.

Plaintiff has identified no case, nor is the Court aware of any, where on similar facts a court

concluded that the constitutional or statutory right was clearly established. Accordingly, the Court

concludes that the right to be free from First Amendment retaliation based upon these facts was

not clearly established, and the individual defendants are alternatively entitled to qualified

immunity for claims against them in their individual capacity.

In sum, plaintiff has failed to sufficiently allege an adverse action which would support his

First Amendment retaliation claim, in large part because any harm he allegedly will suffer is

speculative. Plaintiff has further failed to sufficiently allege that the speech identified in his

complaint was the “but for” cause of any alleged retaliation, and the individual defendants are

otherwise entitled to qualified immunity.

14

CONCLUSION

Accordingly, for the foregoing reasons, defendants’ motion to dismiss [DE 15] is

GRANTED and plaintiffs complaint is DISMISSED in its entirety. Plaintiff's motion for leave to

file a sur-reply [DE 24] is GRANTED. The clerk is directed to close the case.

SO ORDERED, this / 3 day of June 2022.

TERRENCE W. BOYLE

UNITED STATES DISTRICT JUDGE

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